First and Second Thoughts About Culture and Politics

Menu

A Radical Approach to Justice: Fambul Tok

As I was saying yesterday, we Americans carry with us a pretty basic understanding of how “justice” is officially carried out in our names, and we “law-abiding” ones don’t usually give it much thought other than to see it as a deterrent to any “criminal” urges we or our fellow citizens might have. Which is not necessarily a bad thing, if it really does deter people from injuring others in some way. I think most would agree that when a person is violent or injurious to other people, we want that person’s liberty restrained so that they aren’t able to cause harm anymore. The question becomes, however, how long should their liberty be taken from them? And beyond that, who is responsible for dispensing this justice and why them? (And, furthermore, who guards the guards?)

In our system, a person yields his or her liberty the instant representatives of the justice system–e.g., the police–have “reasonable cause” to take custody of them. Sometimes this action actually addresses an incident of violence (though usually after it’s already happened), but, as in the case of the West Memphis Three (and, of course, plenty of others), sometimes the person in custody had nothing to do with the incident in question. The wealthy and well-connected among us (like “The Preppy Murderer” of the 1980s Robert Chambers) can usually afford the bail or bond necessary to liberate themselves (with certain constraints) while awaiting the opportunity to prove themselves innocent of the crimes they’re accused of. Persons of little means like Damien Echols in 1993, on the other hand, are obliged to await that opportunity in holding cells, sometimes for a year or more.

Is this justice?

Never mind all that imperfection, many of us would say. Despite its flaws, our system (which we share, more or less, with most other countries around the world) is still the best we have for addressing violence against society. Most of us probably can’t even conceive of another system, beyond a slightly more humane one focused on rehabilitation, which might address what happens inside the sequestered anti-society of prisons but fails to take a crack at the problem of the injustice of incarcerating innocents. A lot more of us, especially among our right-wing brothers and sisters (but not only among them), would, I’m sure, find the idea of “coddling” criminals in any way not only morally repulsive but financially expensive. Wrong doers, they argue–even people who are only mistaken as wrong doers (there must be some reason for the mistake, right?) –deserve no sympathy. If they suffer assault and rape after conviction, that’s all part of the deal of winding up on the wrong side of the law, isn’t it? In order for justice to heal crime’s victims, it has to hurt those we deem criminals. Right?

Here’s a short film from Sierra Leone’s NGO Fambul Tok (which translates to “Family Talk” from the country’s lingua franca, pidgin English) in which Executive Director John Caulker explains how it has approached the excruciatingly difficult problem of reconciling the victims of Sierra Leone’s decade-long civil war with those who committed the atrocities against them. I can’t make a better case than Caulker for this radical concept of justice, so utterly foreign to our punitive western concept, it may seem insane and impossible on first encounter.

Imagine replacing our obscenely expensive, perfunctory, irrational, ineffective and inhuman (not at all to say inhumane) system (or part of it) with something more like Fambul Tok’s, one in which victims of crimes and perpetrators confront each other directly and attempt to work through the real problems crime creates between people in communities. I admit, I can hardly imagine it myself, because our society has lost the ability or desire to work as a community. But I truly believe it’s something we should start thinking about and talking about. Fambul Tok is certainly a risk in cases of murder or other violence against persons. Not to say it isn’t a risk worth taking in some contexts. But it seems to me it could be tried at the Family Court level, for example, where most of the people injuring each other have tried to have community together, for better or worse.

Professor Becker seems to agree with the charge that the American justice system doesn’t deal in actual justice, but he doesn’t challenge the idea that justice is purely retributive. I’d be interested in seeing someone like him, or someone who thinks like him, justify, so to speak, that notion. What I believe needs to happen is we (humans, citizens, intellects) need to work on understanding justice much more than we do. What do we want from justice? Do we want merely that crimes be paid back somehow, anyhow (which is pretty much what our current system does, and which is how it ends up that innocent people spend years on death row and some really guilty convicted murderers consider death row a life of leisure)? Or do we want more precision in our justice system? If the former (and those, of course are not the only choices possible), can we live with the huge waste of expense (in terms of money and lives)? And if the latter, how do we get more precision?

Since 1973, there have been about 50,000 murderers (1) who may have qualified for the death penalty, based upon post Furman laws.

As of 2012, only 0.3% of those volunteered for execution and were executed.

The rest, 99.7%, have fought for life and against the death penalty/execution, using plea bargains, trials, appeals and commutation, in any fashion possible to avoid death.

No surprise. Death is feared more than life. Life is preferred over death, not just with murderers, but with all of us, save for the determined suicidal.

That’s a fact based review of which sanction murderers find to be more severe and is just one example of why executions are found to deter more than life (2).

FOOTNOTES:

1) a) As of 2012, there have been about 8300 sent to death row since 1973. Of those, about 140, or 1.7%, have “volunteered” for execution. So far, 98.3% of those sent to death row prefer life over execution.

b) Only about 1/3 of all death penalty cases that go to trial end with a death sentence; 2/3 of the defendants received sentences less than death, as they wanted. Total, that is about 25, 200 cases.

c) Even more death penalty eligible cases, an additional 24,800 or so, are otherwise, given sentences less than death, as they wished.

Of the 50,000 eligible cases, only about 140 “volunteered” for execution.

99.7% chose life.

NOTE: I estimate that about 10% of all murders (that being 700, 000, post Furman, 1973-2012) are death penalty eligible, or about 70, 000 murders. I reduced that to 50,000 murderers, based upon some cases of multiple capital murders per murderer.

Some estimate the percentage of capital murders to be as high as 15-20%, as a percentage of all murders., which would mean it much less likely they prefer death over life, than my review shows.

1) Saint (& Pope) Pius V: “The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder.” “The Roman Catechism of the Council of Trent” (1566).

2) Pope Pius XII; “When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.” 9/14/52.

3) John Murray: “Nothing shows the moral bankruptcy of a people or of a generation more than disregard for the sanctity of human life.”

“… it is this same atrophy of moral fiber that appears in the plea for the abolition of the death penalty.”

“It is the sanctity of life that validates the death penalty for the crime of murder. It is the sense of this sanctity that constrains the demand for the infliction of this penalty. The deeper our regard for life the firmer will be our hold upon the penal sanction which the violation of that sanctity merit.” (Page 122 of Principles of Conduct).

4) Immanuel Kant: “If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.”.

“A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.”

5) Billy Graham: “God will not tolerate sin. He condemns it and demands payment for it. God could not remain a righteous God and compromise with sin. His holiness and His justice demand the death penalty.” ( “The Power of the Cross,” published in the Apr. 2007 issue of Decision magazine ).

6) Theodore Roosevelt: “It was really heartrending to have to see the kinfolk and friends of murderers who were condemned to death, and among the very rare occasions when anything governmental or official caused me to lose sleep were times when I had to listen to some poor mother making a plea for a criminal so wicked, so utterly brutal and depraved, that it would have been a crime on my part to remit his punishment.”.

7) Jean-Jacques Rousseau: “Again, every rogue who criminously attacks social rights becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so is no longer a member of the State.” (The Social Contract).

8) John Locke: “A criminal who, having renounced reason… hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security.” And upon this is grounded the great law of Nature, “Whoso sheddeth man’s blood, by man shall his blood be shed.” Second Treatise of Civil Government.

I’m very interested in these arguments and will definitely respond in a separate post.

I just wanted to bring your attention to the fact that the US Conference of Bishops of the Catholic Church (since you cite the authority of two popes of yesteryear) has since 1980 been unequivocally opposed to the death penalty in all instances.

In their 1980 statement, the bishops begin by noting that punishment, “since it involves the deliberate infliction of evil on another,” must be justifiable. They acknowledge that the Christian tradition has for a long time recognized a government’s right to protect its citizens by using the death penalty in some serious situations. The bishops ask, however, if capital punishment is still justifiable in the present circumstances in the United States.

In this context, the bishops enter the debate about deterrence and retribution. They acknowledge that capital punishment certainly prevents the criminal from committing more crimes, yet question whether it prevents others from doing so. Similarly, concerning retribution, the bishops support the arguments against death as an appropriate form of punishment. The bishops add that reform is a third reason given to justify punishment, but it clearly does not apply in the case of capital punishment. And so they affirm: “We believe that in the conditions of contemporary American society, the legitimate purposes of punishment do not justify the imposition of the death penalty.”

The main problem with the COB is that they contradict 2000 years of boblical and theological teachings and, in so doing, neglect the primary purpose of punishment, which is justice, which they never mention.

Quite odd.

Catholicism & death penalty support: A Brief Review
Dudley Sharp

The New Testament death penalty support is overwhelming.

There is a 2000 year record of Catholic Saints, Popes, Doctors of the Church, religious leaders, biblical scholars and theologians speaking in favor of the death penalty, a record of scholarship, in breadth and depth, which overwhelms any position to the contrary.

The very recent changes (EV,1995 & CCC, final amendment 2003) in the Catholic position are based upon a wrongly considered prudential judgement which finds that “defense of society”, a utilitarian/secular concern, not a moral or theological one, very rarely, if ever, requires execution.

This change in teaching is based upon the Church’s switch to utilitarianism – defense of society – when the teachings have been and must be based upon justice, biblical and theological teachings and tradition – all of which conflict with the newest teachings based upon utility — as utility and justice may, often, have conflicts.

In addition, the evidence is overwhelming that execution offers greater defense of society than does a life sentence. Dead unjust aggressors are infinitely less likely to harm and murder, again than are living unjust aggressors.

Living unjust aggressors murder and harm in prison, after escape and after improper release. The cases are well known and are daily occurrences.

It is a mystery why the Church chose a utilitarian/secular prudential judgement over eternal teachings based upon justice and chose to spare more murderers at the cost of more innocent deaths, but that is, precisely what She has done.

It is also a mystery why the Church didn’t review the available evidence, that execution offers a greater defense of society. There is no evidence that She did.

Thankfully, as the recent Church’s teaching is a prudential judgement, such means that any Catholic can support more executions and remain a Catholic in good standing.

Catholics should inquire, why is removal of the death penalty option “preferred”.

How does it become “preferred” when

1) 2000 years of Church teachings are in conflict with a secular/utilitarian “defense of society” foundation. Why aren’t the prior 2000 years of teachings “preferred” and/or Why aren’t those 2000 years of teachings “preferred” over a secular prudential judgment?

2) “Defense of society” is, at best of tertiary importance, even within the recent CCC ? Why aren’t the primary or secondary reasons for sanction, individually and/or collectively, “preferred”? and

3) The facts support that the death penalty must be a greater defender of both society and innocent individuals, than is incarceration? Why is a lesser defense of society, which allows more innocents to be victimized, more “preferred’? This is in the context of death penalty eligible crimes, in proportionality and within Church teachings.
===================================

God/Jesus: ‘Honor your father and your mother,’ and ‘Whoever curses father or mother must certainly be put to death.’ Matthew 15:4 NAB. This is a frequent passage which God used in the OT, which, as was Jesus’ custom, He brought into the NT for emphasis of continuity and importance.
full context http://www.usccb.org/nab/bible/matthew/matthew15.htm

Pope Pius XII: “When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.” 9/14/52.

Pope (and Saint) Pius V, “The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder.” “The Roman Catechism of the Council of Trent” (1566).

All interpretations, contrary to the biblical support of capital punishment, are false. Interpreters ought to listen to the Bible’s own agenda, rather than to squeeze from it implications for their own agenda. As the ancient rabbis taught, “Do not seek to be more righteous than your Creator.” (Ecclesiastes Rabbah 7.33.). Part of Synopsis of Professor Lloyd R. Bailey’s book Capital Punishment: What the Bible Says, Abingdon Press, 1987.

The current Catechism confirms within CCC 2260: “For your lifeblood I will surely require a reckoning…. Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”

“This teaching remains necessary for all time.”

Just as:

Quaker biblical scholar Dr. Gervas A. Carey confirms: ” . . . the decree of Genesis 9:5-6 is equally enduring and cannot be separated from the other pledges and instructions of its immediate context, Genesis 8:20-9:17; . . . that is true unless specific Biblical authority can be cited for the deletion, of which there appears to be none. It seems strange that any opponents of capital punishment who professes to recognize the authority of the Bible either overlook or disregard the divine decree in this covenant with Noah; . . . capital punishment should be recognized . . . as the divinely instituted penalty for murder; The basis of this decree . . . is as enduring as God; . . . murder not only deprives a man of a portion of his earthly life . . . it is a further sin against him as a creature made in the image of God and against God Himself whose image the murderer does not respect.” (p. 111-113). Prof. Carey agrees with Saints Augustine and Aquinas, that executions represent mercy to the wrongdoer: “. . . a secondary measure of the love of God may be said to appear. For capital punishment provides the murderer with incentive to repentance which the ordinary man does not have, that is a definite date on which he is to meet his God. It is as if God thus providentially granted him a special inducement to repentance out of consideration of the enormity of his crime . . . the law grants to the condemned an opportunity which he did not grant to his victim, the opportunity to prepare to meet his God. Even divine justice here may be said to be tempered with mercy.” (p. 116).”A Bible Study”, Essays on the Death Penalty, T. Robert Ingram, ed., St. Thomas Press, Houston, 1963, 1992.

Jesus: Now one of the criminals hanging there reviled Jesus, saying, “Are you not the Messiah? Save yourself and us.” The other, however, rebuking him, said in reply, “Have you no fear of God, for you are subject to the same condemnation? And indeed, we have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.” Then he said, “Jesus, remember me when you come into your kingdom.” (Jesus) replied to him, “Amen, I say to you, today you will be with me in Paradise.” Luke 23: 39-43

It is not the nature of our deaths, but the state of salvation at the time of death which is most important.

Jesus: “So Pilate said to (Jesus), “Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?” Jesus answered (him), “You would have no power over me if it had not been given to you from above.” John 19:10-11

The power to execute comes directly from God.

Jesus: “You have heard the ancients were told, ˜YOU SHALL NOT COMMIT MURDER” and “Whoever commits murder shall be liable to the court”. But I say to you that everyone who is angry with his brother shall be guilty before the court; and whoever shall say to his brother, “Raca”, shall be guilty before the supreme court and whoever shall say, “You fool”, shall be guilty enough to go into fiery hell.” Matthew 5:17-22.

Fiery hell is a considerable more severe sanction than any earthly death.

The Holy Spirit, God, through the power and justice of the Holy Spirit, executed both Ananias and his wife, Saphira. Their crime? Lying to the Holy Spirit – to God – through Peter. Acts 5:1-11.